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The Absentee Ballot and the Secret Ballot: Challenges for Election Reform

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The Absentee Ballot and the Secret Ballot: Challenges for Election Reform University of Michigan Journal of Law Reform Volume 36 2003 The Absentee Ballot and the Secret Ballot: Challenges for Election Reform John C. Fortier American Enterprise Institute Norman J. Ornstein American Enterprise Institute Follow this and additional works at: https://repository.law.umich.edu/mjlr Part of the Comparative and Foreign Law Commons, Election Law Commons, and the Privacy Law Commons Recommended Citation John C. Fortier & Norman J. Ornstein, The Absentee Ballot and the Secret Ballot: Challenges for Election Reform, 36 U. MICH. J. L. REFORM 483 (2003). Available at: https://repository.law.umich.edu/mjlr/vol36/iss3/2 This Article is brought to you for free and open access by the University of Michigan Journal of Law Reform at University of Michigan Law School Scholarship Repository. It has been accepted for inclusion in University of Michigan Journal of Law Reform by an authorized editor of University of Michigan Law School Scholarship Repository. For more information, please contact [email protected]. THE ABSENTEE BALLOT AND THE SECRET BALLOT: CHALLENGES FOR ELECTION REFORM John C. Fortier* NormanJ. Ornstein** Reforms in the recently enactedfederal election reform legislationprimarily address improving voting at a polling place, but there is a growing share of the electorate who vote away from the polling place through increaseduse of absentee ballots and vote-by-mail systems. Voters who vote away from the polling place do not have the same protections as those at the polling place. In particular,these voters do not have a secret ballot, as any ballot cast without a drawn curtain behind oneself is potentially subject to coercion, vote buying and fraud. This Article looks at the tension between the Australian Ballot and absentee vot- ing. Both the Australian Ballot and the Absentee Ballot were electoral reforms of previous generations. The Australian Ballot was instituted by almost all of the states in the 1880s and 90s to combat abuses at the ballot box such as vote buying and coercion by party machines. There were two major periods of absentee ballot re- form. In both periods of absentee ballot reform, there was recognition of the dangers of casting a ballot away from a home polling place. Since these early periods of adoption of absentee voting laws, there has been a significant rise in voting away from the polling place. In addition, many of the safeguards implemented by early legislation have been repealed. There are a number of advocatesfor easier absentee balloting, vote by mail, or even voting over the Internet. Although they emphasize the convenience of such measures, these advocates do not seem to appreciate the privacy concerns that the originatorsof the absentee ballot did. 7b the extent that election reform legislation is to be successful in improving the electoral system, it must take note of the trend toward voting away from the polling place and con- sider the importance of the secret ballot as well as convenience. INTRODUCTION While it did not sweep through the political process like a tidal wave as predicted after the 2000 election controversy, election re- form legislation at the Federal level finally made its way through Congress two years after the Florida brouhaha. Along the way, there were certainly partisan differences between Democrats and * Research Associate, American Enterprise Institute. BA 1988, Georgetown University; Ph.D. 2000, Political Science, Boston College. ** Resident Scholar, American Enterprise Institute. BA 1967, University of Minnesota; MA 1968, Ph.D. 1972, Political Science, University of Michigan. We are indebted to Will Adams and Caroline Rieger for their diligent research. 483 University of MichiganJournal of Law Reform [VOL. 36:3 Republicans as to the content of election reform legislation, over issues such as the scope of federal standards and the nature of anti- fraud rules.' But almost unnoticed in the recent debate is an even more fundamental divide between two visions for the future of American elections. Advocates of one vision see the traditional polling place as the focal point of voting in America, and seek to improve its accessibility, ease of use, integrity and openness to all voters. Those who hold the other vision see the traditional polling place as an inefficient and costly obstacle that discourages voting. They promote convenience voting away from the polling place through "no-excuses absentee ballots,"' and hold out the promise for Internet voting. The clash between these visions flared only oc- casionally during the congressional debates on election reform,3 and has not been the subject of widespread, robust political de- bate. Underlying the debate over election reform was a vast gulf between two distinct visions--one a traditional veneration of the act of voting as a civic responsibility, a collective judgment made as neighbors gather together, making supremely individual judg- ments in the privacy of a curtained voting booth, and the other a sense of voting as a burden, with new technologies available to ease that burden and expand the franchise to more citizens. There is little doubt that in the past thirty years, the country has moved in the direction of convenience voting and away from the traditional polling place and its safeguards. Many election officials have focused their efforts on reducing barriers to voting and as the complications and costs of maintaining numerous election-day polling places for longer hours have risen, have been attracted by the lower administrative costs of absentee voting, vote-by-mail and early voting. Election officials have also been motivated by the criticism of low turnout rates in America and view absentee voting in its various forms as a way to increase turnout, even though evidence of a correlation between voter turnout and easy absentee voting is limited at best. It is our concern that this shift has altered the proper balance between convenience and the protections of the secret ballot, with too much focus on ease of voting and not enough on protecting the privacy of the voter. As casting ballots away from the polling place becomes more widespread, the 1. See, e.g., Robert Pear, Bill to Overhaul System of Voting is Seen in Danger, N.Y. TIMES, Sept. 7, 2002, at Al. 2. This term refers to laws that do not require the voter to supply a reason for obtain- ing an absentee ballot or vote by mail. 3. Karen Foerstel, BallotingSystem Revamp Sags in Senate over ID. 's: Chances Dim for Fall Potency, CQ WEEKLY, Mar. 9, 2002, at 637. SPRNG 2003] The Absentee Ballot and the Secret Ballot possibilities for fraud and coercion expand, and the importance of a civic election day is diminished. Perhaps not surprisingly, given the Florida-related impetus be- hind reform, recently passed election reform legislation focuses primarily on improvements at the polling place, including strengthening the protection of the secret ballot, reducing the number of spoiled ballots, securing the availability of accurate voter registration information at the polling place so that qualified voters are not turned away, deterring fraud, and increasing access for all to the polling place.4 We are supportive of these legislative changes, but it is worth noting that most of the reforms are less relevant to voting away from the voting booth. In fact, advocates of voting by mail made a concerted effort to exempt their system from reforms aimed at combating identity fraud and reducing the number of spoiled ballots.5 Much of federal election reform legislation focuses on reform- ing the election day polling place, and since of the trend is toward voting away from the polling place,6 a substantial percentage of voters will not receive the full benefit of these reforms. It would be wise for reformers to consider the effects of this trend to keep vote by mail and no-excuses absentee voting from opening the door to the kind of electoral fraud and corruption that was prevalent in the late 19th century. There is a natural tension between the concern for privacy and absentee voting. Privacy cannot be guaranteed unless it is mandatory for voters to vote behind a curtain out of sight of those who might seek to influence a vote. Absentee ballots, by definition, are ballots cast without the privacy protections of the polling place. While absentee ballots have become a necessity, we believe that voting away from the polling place should only be granted in cases of significant need, and not simply for conven- ience. This Article focuses on some of these issues first by tracing the history of several reforms in American elections, particularly on the introduction of the Australian ballot at the end of the nineteenth century. The reform was widely and swiftly adopted in response to widespread vote buying, fraud, and partisan coercion 4. See generally Help America Vote Act of 2002, Pub. L. No. 107-252, 116 Stat. 1666 (2002). 5. Foerstel, supra note 3. 6. See infra Part III.C. 7. Corruption was so prevalent that the Australian ballot was introduced to combat it. See e.g., L.E. FREDMAN, THE AUSTRALIAN BALLOT: THE STORY OF AN AMERICAN REFORM 30- 31 (1968). University of MichiganJournal of Law Reform [VOL. 36:3 that became increasingly evident and embarrassing in the 1880s and 1890s. Second, this Article documents the rise of absentee and mail voting in the United States, indicating how its early advocates championed these reforms in order to enfranchise those who could not vote at their home polling place, but also instituted significant safeguards out of fear that absentee voting might compromise the secrecy and anti-fraud protections of the Australian ballot. Third, we address some of the potential problems with voting outside a polling place and examine recent cases of absentee ballot fraud.
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